A particularly expensive cup of coffee

The relatively recent case of Raj Bista Glad Group Pty Ltd t/a Glad Commercial Cleaning was too unique and somewhat humorous not to warrant a post. Aside from Vice President Hatcher's rather witty highlights in his decision, it's the employer's extreme reaction to circumstance which makes this case particularly notable. The Sydney Morning Herald covered the case in an article here.

At a high level summary, this is an unfair dismissal case concerning a dismissal for serious misconduct. The conduct itself concerned Mr Bista, a part time cleaner for Glad cleaning services who was dismissed for having a cup of coffee at the client's premises prior to starting his shift.

Serious Misconduct is not just a loose term in Australian industrial relations, it is a specifically defined form of misconduct which warrants summary dismissal by an employer. The definition is found under Regulation 1.07 of the Fair Work Regulations and is designed to cover behaviours where an employee has engaged in theft, fraud, assault or engaged in deliberate conduct causing serious and imminent risk to health and safety etc.

Serious misconduct in unique in that there are not only very particular set tests one must meet but also that creates a material disadvantage to employee in regards to their termination. For instance employees are not entitled to notice in lieu of termination as noted in Section 123 (1) (b) of the Fair Work Act 2009 and this also impacts an employee's entitlement to Long Service Leave where they have had less than 10 years service (ACT and TAS being 7 and 15 years respectively as LSL is state based legislation).

With this in mind an employer should be sure they are on sound footing when terminating an employee for serious misconduct as in most cases they would at the same time be making a conscious decision to withhold entitlements the employee would have otherwise received on termination.

In this case the employer made the termination on grounds that Mr Bista engaged in theft stating to Mr Bista in a letter that "Neither the coffee nor the paper cup it was made in were the property of yourself or the Glad Group". Furthermore they claimed that this action this caused a serious and imminent risk to the reputation, viability or profitability of the business in that:

• The tenant expressed distrust towards Glad Group Cleaners; and
• Glad Group's viability depends on it's reputation when tendering for contracts.

I particularly enjoy Vice President Hatcher's reference to the English language when describing how disproportionate the employer's definition of theft was to that of common sense usage in the workplace.

In Mr Bista’s case, I consider that the conduct upon which his dismissal was based was insignificant to the extent that it could not constitute a sound, defensible or well-founded reason for his dismissal. In my view, any reasonable person would regard his conduct as involving no more than a trivial misdemeanour... I prefer to take a more commonsense approach to Glad’s characterisation of Mr Bista’s conduct. In my view describing his conduct as “theft” verges on an abuse of the English language as used and understood by the ordinary person...

Vice President Hatcher goes on to outline a number of mitigating circumstances to assert why this is the case noting points such as:

• Mr Bista had previously shared coffee with his own supervisor and had been invited to have coffee by staff members of the client.
• On the day in question, he made the coffee in front of two employees of the client and chatted with them while doing so. The employees made no objection to his actions.
• The "property" the employer was claiming that was stolen consisted of the "coffee, hot water and a paper cup. They were all consumable items. Their collective value would have been well under one dollar."
• Mr Bista apologised immediately when confronted by the Office and Facilities Manager and explained he did not know he was not allowed to make a coffee. It also appeared by actions of the manager that this apology was accepted at the time.

On the item of "serious am imminent risk to reputation..." etc. Vice President Hatcher interestingly notes that the mere fact that Glad was on a rolling monthly contract with the client and had to undergo a public tender did not substantiate the claim that such a risk existed. Also the Office and Facilities Manager's comment that there was now an "element of distrust" was directed at Mr Bista personally rather than the employer.

This second consideration highlights that employers need substantial grounds to claim such a risk and need to be cautious if the risk is actually concerning just an individual or the organisation. It was also noted that it would not have been difficult for the employer to simply relocate Mr Bista to another site if required.

Vice President Hatcher awarded $9172.20 in damages to Mr Bista in addition to reinstatement, resulting in what ended up being a very expensive cup of coffee.

Make sure you're on sound footing before directing an employee to attend a medical assessment

In the recent finding of Cole v PQ Australia Pty Ltd t/a PQ Australia [2016] the Fair Work Commission has provided some clarity around when it is reasonable for an employer to request an employee attend a medical examination.

In this case PQ Australia stood down Mr Cole after he had taken one day personal leave and directed him to attend a medical examination. When Mr Cole refused (and failed) to attend the medical examination, PQ Australia terminated Mr Cole's employment.

PQ Australia did not state this was the sole reason for his termination. They also mentioned he failed to comply with a direction to only communicate with PQ Australia's Vice President of HR during his stand down. In addition PQ Australia stated in their communication to Mr Cole:

“The reason that we have directed you not to attend for work until further notice is that a number of issues have arisen in the workplace over the last few months which have involved or affected you and we are concerned about the impact these issues have had on you and on others.”

However it was clear that not attending the medical assessment was the core issue here.

In situations such as these, one would expect Mr Cole to have a history of abnormal personal leave absences in order to justify the request for a medical. However this was not the case, as Commissioner Roe finds:

"PQ Australia did not allege that they had any concerns about the frequency or nature of Mr Cole’s absences from work on personal leave. Mr Cole had not had any lengthy or frequent absences. In fact he had accumulated more than 27 days of unused personal leave in his approximately 4 years of service. Mr Cole was absent for one day on personal leave on 14 June 2015. Mr Cole attended his doctor and eventually provided a medical certificate for this single day absence. He also provided a pathology request form signed by his doctor which included a diagnosis of his condition."

Given these facts it is unsurprising that Commissioner Roe found that the request to be unreasonable. While the employer presented a number of reasons to support their request, these were not substantial enough and in reviewing the matter Commissioner Roe outlined the following questions to consider:

1.   Was there a genuine indication of the need for the examination, such as prolonged absences from work, or absences without explanation, or evidence of an illness, which related to the capacity to perform the inherent requirements of the job

2.   Had the employee provided adequate medical information which explained absences and demonstrated fitness to perform duties?

3.   Was the industry or workplace particularly dangerous or risky?

4.   Were there legitimate concerns that the employee’s illness would impact on others in the workplace?

5.   Did the employee agree to the assessment by the medical practitioner selected by the employer?

6.   Was the employee advised of the details of the conduct which led to the concerns that he was not fit for duty?

7.   Was the medical practitioner advised of the issues of concern, and were those matters focused on the inherent requirements of the job? What information was proposed to be given to the medical practitioner about the actual job requirements?

8.   Was the employee advised of the matters to be put before the medical practitioner for his assessment?

9.   Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?

PQ Australia felt the full brunt of the Fair Work Act in Commissioner Roe's findings as he applied the full 6 month compensation as a remedy in favour of Mr Cole. This equated to a payment of $43,906.72.

I have found medical assessments work best with an open and transparent approach. Clearly in this case the situation became adversarial and hostile almost from the very start. It's important to ensure employees feel comfortable during the process so in turn they and their Doctor/s are more likely to be fully cooperative with the employer.

Holding Redlich also has a quick write up on the case here.

Some pondering on ethics and morality

This months' Human Resource Director Magazine had an interesting piece on ethics interviewing the GM HR of ANZ, Suzette Corr.

The big takeaways from the interview are actually two quotes. They obviously struck the HRD editor as well as he (Ian Hopkins) also referred to them in his editor's note inside the front page.

Firstly was this:

My take on integrity is it's the personal drive to do what's right. It's to advise on in what's right. It's to advise without fear or favour and to have the moral character to not just know right from wrong, but to speak up and challenge as necessary... It's in the actions you take rather than just a trait of who you are. 

What really struck me from this quote is it moves beyond just an ethical stance but rather looks towards one's actions and to be able to take those actions with courage of unbiased thought. 

The other was in reference to how CHRO's and HRD's can often find themselves leading organisations of thousands or tens of thousands of people and their capacity to drive positive change is particularly significant. 

Imagine the powerful force for good HR could be if these people, whose profession is humans, embraced an understanding of ethics and integrity and acted upon and spoke up to ensure the right thing was done?

This got me thinking back to a podcast I heard from Radio National's All In The Mind years ago about morality and so I went on a search. Fortunately I found it surprisingly quickly! It's titled Moral Minds: The Evolution of Morality and while it doesn't directly reference the organisational context, I believe it still has worthwhile items to ponder on. Here All In The Mind interviews Mark Hauser, Professor of Psychology and Evolutionary Biology at Harvard University and Richard Joyce, Associate Professor of Philosophy at the University of Sydney.

Below are two extracts from the show. Both have differing and interesting implications when we look back to the workplace. With Marc it relates to distance (physical and hierarchical/organisational), action vs inaction and why sometimes people might be inclined "put things under the rug". With Richard it delves into areas like organisational politics, unwritten cultural norms and conflicting obligations.   

Marc Hauser: 

So where we're making progress on this is that we built about three years ago a website called The Moral Sense Test which now after about three years has somewhere like 300,000 subjects from around the world. And on that website people log in and tell us where they're from, their religious background, or educational background, age and so forth. And then they proceed to take many of the kind of classic moral dilemmas that you know people like Richard and other moral philosophers have invented to try to get some purchase on the nature of people's intuitions. 

Here's some examples of the kind of things that seemed to cut across culture, at least with the sample we have. 

As far as we can tell across this very large sample of people, people judge actions that cause harm as worse than omissions of an action that caused exactly the same harm. People consider a harm that is intended as worse than the same harm that is foreseen... 

...why is it that people think that using somebody as a means to an end is not OK, whereas something that maybe harms one but for a greater good, under certain circumstances, it might be OK.

Richard Joyce: 

If it's true that human ancestors lived in an environment where reciprocity was extremely important to them, which almost certainly they did, then there's a question of 'well, what does morality actually add to the reciprocal exchange'? And the idea that I've been examining is that it bolsters motivation. It's all very well to give something to somebody cause you like that person, but if in addition you feel that you're morally obligated to pay them back in exchange for something they gave you on a previous occasion - that is perhaps the evolutionary function of the moral faculty. That it bolsters motivation in the social sphere to make us better co-operators.

If you have the time and interested in the subject, I highly recommend you check out the article and podcast.